Now the gay marriage fight will become a fight over ‘religious liberty’

The story of conservatives and gay rights in the last couple of decades has been one of a series of retreats. One characteristic of these retreats has been the way they shifted focus from gay people themselves to straight people. As George Costanza would have put it (and he really is emerging as one of America’s most important political philosophers), “It’s not you, it’s me.”

Conservatives went from arguing that gays in the military couldn’t be good soldiers to arguing that they should be banned because they’d make straight soldiers uncomfortable, and from arguing that gay marriage was an abomination to arguing that it should be banned because gay marriages would cause straight people to start divorcing each other.

In the wake of the Supreme Court ruling of a Constitutional right to gay marriage, conservatives have retreated to a new hill and declared that this is the one on which they’ll make their stand: “religious liberty.”

While there’s a political calculation at work and a lot of the rhetoric travels into the territory of the absurd, there are also some legitimate legal questions that have to be worked out.

First, let’s place this in context. For some time now, conservative Christians have told themselves a story of their own oppression, one that testifies to their courage in holding to their faith when hostile forces would rip it from them and send them cowering to the shadows. This is in large part a reaction to the diversification of our society, in which the proportion of Americans who are Christian is indeed declining. As a result of that change, many of the features of civil and commercial life have changed as well, so that instead of being the only religion expressed, Christianity is one among many. Some Christians would obviously prefer it if their particular faith had a monopoly on government expressions and things like signs in department stores, and are genuinely horrified when they see a sign reading “Happy Holidays” instead of “Merry Christmas.”

Since those Christians are mostly Republicans, and evangelicals are particularly numerous in the state of Iowa, GOP presidential candidates almost inevitably echo those sentiments back to the voters, repeating the narrative of oppression. “I’m not ashamed to admit that I’m a Christian,” said Rick Perry in a famous ad from his presidential run four years ago. So brave, to admit that! “But you don’t need to be in the pew every Sunday to know that there’s something wrong in this country when gays can serve openly in the military but our kids can’t openly celebrate Christmas or pray in school.”

For the record, people still celebrate Christmas pretty openly last time I checked, and every kid is free to pray in school; what’s forbidden (in most but not all cases) is prayers sponsored and organized by the public school itself.

In any case, the gay marriage decision is easy to turn into a story of Christians oppressed, like the baker who doesn’t want to bake a cake for a gay couple. Conservatives have successfully expanded the realm of the religious beyond things like rituals, worship, and sacraments into other realms like commerce, and if they’re feeling despondent over the Court decision, they should remember that this Supreme Court has agreed with them, holding in the Hobby Lobby case that a corporation can have its own religious beliefs and thus excuse itself from laws it doesn’t find congenial.

One of the most powerful arguments marriage equality advocates have had during this debate comes down to: “What do you care?” When their opponents were challenged to explain how a gay couple’s marriage would harm the marriages of their straight neighbors, they had no answer. So as we enter this new phase of the debate, they want to describe a world where Christians everywhere are being oppressed by gay marriages, where it’s much more than the odd cake baker, but in fact every believer’s liberty is threatened. Mike Huckabee promises not only to sign an executive order on his first day as president protecting the religious liberty of everyone opposed to gay marriage; he also says he’ll “aggressively prosecute attacks against people of faith as hate crimes.” You may not have heard stories about the roving gangs of gay toughs beating up Christians, but Huckabee is on the case.

And if the press releases I get from religious right organizations are any indication, some Christians are terrified that eventually, the government will force members of the clergy to perform same-sex weddings against their will. This is, of course, ridiculous. Inter-faith marriages are protected by the Constitution, but the government can’t force a Catholic priest to perform a ceremony in which a Jew marries a Protestant. Almost nothing is more central to the First Amendment’s free exercise clause than religious rituals, so the idea that the government would dictate the terms of the weddings performed by churches is simply fantastical. Some are also raising fears that ministers will be handcuffed at their pulpits for preaching against gay marriage, which is equally absurd.

Nevertheless, the Supreme Court’s ruling does raise some questions that will have to be answered in future court cases. There are states that ban gay couples from adopting or being foster parents. Are those laws Constitutional? Can a religious college with special housing for married couples exclude gay couples? What about schools with broad anti-gay policies?

We haven’t really begun to work through these questions, but as I said, the Supreme Court has been extremely open to expansive claims of religious liberty in recent years. As Justice Anthony Kennedy wrote in his majority opinion, “it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.”

So while it’s in the political interests of conservatives to claim that everywhere in America religious people are struggling under the pitiless gay boot-heel, and without a titanic struggle they’ll be forced to practice their faith in secret lest the government cart them off to secular reeducation camp, their true situation isn’t nearly so dire. But “this will all get worked out” isn’t quite as compelling a story for activists and politicians to tell.

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